This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
1 Ckitty, Pleading (7th Ed.) 283.
39. Barker v. Darner, Garth. 182; Stevenson v. Lambard, 2 East, 575,
2 Gray's Case. 679; Thursby v. Plant, 1 Saund. 237; Bowdre v. Hampton, 6 Rich. Law (S. C.) 208. See Salisbury v. Shirley, 66 Cal. 223, 5 Pac. 104. Bonetti v. Treat, 91 Cal. 223, 14 L. R, A. 151, 27 Pac. 612; Hintze v. Thomas, 7 Md. 346, to the effect that the action is based on privity of estate.
40. See cases cited in article by Prof. J. B. Ames, on Assumpsit for Use and Occupation, in 2 Harv. Law Rev. at pp. 378, 379, Lectures on Legal History, pp. 168, 169. And see, also, Hinsdale v. Humphrey, 35 Conn. 443; Rubens v. Hill, 213 I11. 523, 72 N. E. 1127; Trustees of Hocking County v. Spencer, 7 Ohio (2nd part) 149; Burnham v. Best, 49 Ky. (10 B. Mon.) 227; Swem v. Sharretts, 48 Md. 408; Johnson v. Muzzy, 45 Vt. 419, 12 Am. Rep. 214.
- Remedy in equity. Equity will occasionally take jurisdiction of a proceeding by the landlord for the recovery of rent on the ground that the remedy at law is inadequate. One case in which equity thus takes jurisdiction is where the tenant has made a sublease, and the tenant is insolvent, in which case the court will direct the subtenant to pay the rent to the chief landlord, on the theory that the rent should be discharged out of the profits of the land.41 This theory, that the profits of the land are properly applicable to the payment of rent, and that equity alone can enforce such application, would, seem to be the grounds on which the jurisdiction of equity should be sought and sustained. It cannot, however, be said that this reason for the assumption of jurisdiction by equity clearly appears from the cases, such jurisdiction having ordinarily been sustained on the ground that the remedy by distress was for some reason not available in the particular case.42 That the amount of rent due and payable by defendant is uncertain, either because he is tenant of but a part of the land subject to the lease43 or for other reasons,44 has also been regarded as ground for the interposition of equity.
41. Goddard v. Keate, 1 Vern. 87; Haley v. Boston Belting Co., 140 Mass. 73, 2 N. E. 785; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481; Otis v. Conway, 114 N. Y. 13, 20 N. E. 628; Kemp v. San Antonio Catering Co., 118 Mo. App. 134, 93 S. W. 342.
42. Collet v. Jacques, 1 Ch. Cas. 120; Cocks v. Foley, 1 Vera. 359; North v. Strafford, 3 P. Wms. 148; Benson v. Baldwin, 1 Atk.
598; Leeds v. Powell, 1 Ves. Sr. 171. See article by Prof. C. C. Langdell, 10 Harv. Law Rev. 93.
4.".. Swedesborough Church \. Shivers, 16 N. J. Eq. (1 C. E. Green) 453.
44. Livingston v. Livingston, 4 Johns Ch. (N. Y.) 287, 8 Am. Dec. 562; Van Rensselaer v. Layman, 39 Harv. Pr, (N. Y.) 9. See 2 Tiffany, Landlord & Ten. Sec. 292.
- Action for use and occupation. At common law, as above stated, assumpsit would lie upon a contract not under seal for the payment of rent.45 And it would also lie upon a contract to pay a reasonable compensation for the use and occupation of land, provided no certain rent was reserved.46 The statute 11 Geo. 2, c. 19, Sec. 14, authorised a landlord, provided the demise is not by deed, that is, is not under seal, to recover a reasonable satisfaction in an action on the case for the use and occupation of the land, even though a certain rent is reserved and there is no proof of an express promise. A statute of a similar character has been enacted in a number of states,47 while in several, upon what appears to be a somewhat questionable reading of the earlier English decisions, it has been decided that a landlord may recover in such an action apart from a statute bearing on the subject.48
In this action, the technical name of which is indebitatus assumpsit for use and occupation, rent as such is not recovered, but merely a reasonable satisfaction for the use of the premises; and the recovery is based on the theory that a contract to pay such reasonable satisfaction is to be inferred from the circumstances in conformity with the intention of the parties. If one person permits another to take and retain possession of his land, it is, in the ordinary case, a reasonable inference that the former expects the latter to pay the reasonable value of such pos45. Ante, this section, note 40.
46. Ames, Assumpsit for Use and Occupation, 2 Harv. Law Rev. 379, Lectures on Legal History, 169.
47. See 2 Tiffany, Landlord & Ten. p. 1856.
48. Gunn v. Scovil, 4 Day (Conn.) 228, 4 Am. Dec. 208; Crouch v. Briles, 30 Ky. (7 J. J.
Marsh) 255, 23 Am. Dec. 404; Dwight v. Cutler, 3 Mich. 566, 64 Am. Dec. 105; Heidelbach v. Slad-er, 1 Handy (Ohio) 457; Eppes v. Cole, 4 Hen. & M. (Va.) 161, 4 Am. Dec. 512. That it does not lie apart from statute, see Bell v. Ellis' Heirs, l Stew. & P. (Ala.) 294; Byrd v. Chase, 10 Ark. 602; Long v. Bonner, 33 N. C. 27.
Session or occupation, and that the latter expects to pay, and the law recognizes the reasonableness of such inference and enforces a contract so inferred. It is in this sense only that, as is frequently stated, "the law implies an obligation" to pay the value of the use and occupation, the obligation not being implied by law without reference to the presumed intentions of the parties, as in the case of quasi contract.
To sustain an action for use and occupation the relation of landlord and tenant must, ordinarily at least, exist between the parties.49 And consequently it will not lie in favor of the owner of land against a person who has entered thereon as a trespasser.50 Occasionally a state statute has been construed as authorizing such an action against a trespasser,51 and in several states, where the line between the different forms of action has been obscured by statutory enactments, a trespasser may, it seems, be made liable for the rental value of land under allegations of use and occupation by him.52 Such an action cannot however be regarded as the equivalent of assumpsit for use and occupation, but is more properly an action of trespass. for mesne profits, according to the common law nomenclature.
49. Carpenter v. United States, 84 U. S. (17 Wall) 489, 21 L. Ed. 680; Hamby v. Wall, 48 Ark. 135, 3 Am. St. Rep. 218, 2 S. W. 705; Emerson v. Weeks, 58 Cal. 439; Cambridge Lodge v. Routh, 163 Ind. 1, 71 N. E. 148; Jones v. Donelly, 221 Mass. 213, 108 N. E. 1063; Hogsett v. Ellis, 17 Mich. 351; Mcfarlan v. Watson, 3 N. Y. 286; Aull Sav. Bank v. Aull's Adm'r, 80 Mo. 199; Rosenberg v. Sprecher, 74 Neb. 176, 103 N. W. 1045; Clark v. Clark's Estate, 58 Vt, 527, 3 Atl. 508.
50. Pico v. Phelan, 77 Cal. 86, 19 Pac. 180; Lathrop v. Standard Oil Co., 83 Ga. 307, 9 S. E. 1041; Carrigg v. Mechanics' Bank of Providence, 136 Iowa, 261, I11 N. W. 329; Stockett v. Watkins' Adm'rs, 2 Gill. & J. (Md.) 326,
20 Am. Dec. 438; Emery v. Emery, 87 Me. 281, 32 Atl. 900; Inman v. Morris, 63 Miss. 347; Brolasky v. Ferguson, 48 Pa. 434; Galveston Wharf Co. v. Gulf C. & S.f. R. Co., 72 Tex. 454, 10 S. W. 537.
51. Dell v. Gardner, 25 Ark. 134; Missouri Pac. R. Co. v. Atchison, 43 Kan. 529, 23 Pac. 610; Newberg v. Cowan, 62 Miss. 570; Earl v. Tyler, 36 Okla. 179, 128 Pac. 209.
52. See Lindt v. Binder, 117 Iowa, 110, 90 N. W. 596; Hidden v. Jordan, 57 Cal. 184; Lamb v. Lamb, 140 N. Y. 317, 41 N. E. 26; Long Bell Lumber Co. v. Martin, 11 Okla. 192, 66 Pac. 328; Olson v. Huntamer, 6 S. Dak. 364, 55 Am. St. Rep. 844, 61 N. W. 479.
- Forfeiture of leasehold. The landlord is, by the express terms of the lease, frequently given the right to re-enter on the land, and thereby terminate the tenant's interest, in case of nonpayment of rent, such a stipulation rendering the tenant's estate one on condition.53 In a number of states, apart from any such provision in the lease, the landlord is authorized to resume possession upon the tenant's failure to pay rent, such a provision being most frequently introduced as a part of a statute authorizing summary proceedings, and the non payment of rent being named as one of the grounds for such a proceeding, while in a few states the non payment of rent is made a around of forfeiture, without any reference to the mode of proceeding by which the forfeiture may be enforced.54